BHUNU
CCJ:
This
matter was heard on 13 January 2016 with judgment being reserved.
On
27 January 2016 this court determined that in view of the fact that
this case raises similar issues as that of Farai
Lawrence Ndlovu & Anor v The Minister of Justice Legal &
Parliamentary Affairs
Constitutional
Application
No.50 of 2015, it was convenient that the two cases be consolidated
and heard simultaneously.
To
that extent the court issued the following order:
“IT
IS ORDERED THAT:
The
matter be and is hereby postponed sine
die
to
enable this case to be heard by the same bench that heard the matter
of Cuthbert
Chawira & Ors vs Minister of Justice
CCZ47/2015. The Registrar is directed to set this matter at the
earliest convenient date for hearing.”
In
view of the above directive the handing down of judgment in this case
was postponed pending the completion of Case No.50/15.
The
matter however dragged on and on until it was eventually struck of
the roll on 1 January 2017 thereby paving way for the completion and
delivery of judgment in this case.
The
application is in terms
section
85(1)(a) and (d) of the Constitution which entitles both natural and
juristic subjects to approach this court for relief as a court of
first instance whenever their fundamental human rights enshrined in
Chapter 4 have been infringed or threatened.
All
the fifteen applicants are condemned prisoners on death row awaiting
execution after being sentenced to death by the High Court. They
have been on death row for varying periods of time ranging from 2 to
18 years of incarceration.
They
have now approached this court complaining that the length of their
stay on death row is an affront to their human dignity and freedom
from torture or cruel, inhuman or degrading treatment or punishment
in violation of sections 51 and 53 of the Constitution.
Section
51 provides that:
“51
Right to Human Dignity
Every
person has inherent dignity in their private and public life, and the
right to have that dignity respected and protected.”
Section
53 goes on to protect subjects against torture, cruel, inhuman and
degrading treatment or punishment. It provides that:
“53
Freedom from torture or cruel, inhuman or degrading treatment or
punishment
No
person may be subjected to physical or psychological torture or to
cruel, inhuman or degrading treatment or punishment.”
Initially
the applicants sought commutation of their respective death sentences
to life imprisonment. That relief was, however, abandoned at the
hearing through an amended draft order seeking to quash the sentences
of death and remittal of the cases to the High Court for
re-sentencing. The amended draft order reads:
“IT
IS ORDERED THAT:
1.
In remedy, the sentences of death imposed on
the Applicants, namely, Cuthbert
Tapuwanashe Chawira, Masimba Mbaya, George Munyaradzi Manyonga, Jack
Sikala, Livingstone Sithole, Jack Nyati, Busani Tshuma, Killian
Mpofu, Wisdom Gochera, Ezra Manenji, Kudakwashe Taonangwere, Farai
Lawrence Ndlovhu, Governor Masawaire and Lyton Mathe be
quashed and determination
of the appropriate substituted punishment for each Applicant be
remitted for hearing.
2.
The First Respondent pays costs of suit.”
The
applicants cases are at varying stages of progress to finality. Some
are yet to appeal to the Supreme Court whereas others have had their
appeals dismissed but are yet to exercise their right to seek
presidential pardon in terms of section 48(2)(e) of the Constitution.
Thus,
they are all approaching this court without first exhausting the
statutory legal remedies available to them comprising:
1.
Seeking review
of
the administrative action or omission complained of under the
Administrative Justice Act [Chapter
10:28].
2.
Appealing
to the Supreme Court in terms of section 70(5)(b) of the
Constitution.
3.
Seeking Presidential
pardon
or
commutation
under section 48(2)(e) of the Constitution.
The
crisp issues which then arise for determination are:
1.
Whether or not this court has the jurisdiction to grant the order
requested by the applicants and, if so, whether the issues raised are
ripe for determination.
2.
Whether or not the delay in carrying out the death sentences is a
violation of the applicants fundamental human rights under section 51
and 53 of the Constitution.
In
retaining the death penalty albeit
under very restricted circumstances, the new Constitution has laid
out an elaborate procedure which must be meticulously followed under
section 48 which provides as follows:
“FUNDAMENTAL
HUMAN RIGHTS AND FREEDOMS
48
Right to Life
(1)
Every person has the right to life.
(2)
A law may permit the death penalty to be imposed only on a person
convicted of murder committed in aggravating circumstances, and —
(a)
the law must permit the court a discretion whether or not to impose
the penalty;
(b)
the
penalty may be carried out only in accordance with a final judgment
of a competent court
(c)
the penalty must not be imposed on a person —
(i)
who was less than twenty-one years old when the offence was
committed; or
(ii)
who is more than seventy years old;
(d)
the penalty must not be imposed or carried out on a woman; and
(e)
the
person sentenced must have a right to seek pardon or commutation of
the penalty from the President.
(3)
An Act of Parliament must protect the lives of unborn children, and
that Act must provide that pregnancy may be terminated only in
accordance with that law.” (Emphasis provided)
Both
the judiciary and everyone concerned are dutifully obliged to
scrupulously observe the above mandatory constitutional provisions.
I
now turn to determine the two issues which fall for determination in
sequence.
1.
Whether or not this court has the jurisdiction to grant the order
requested by the applicants
The
Constitutional Court is a creature of the Constitution whose
jurisdiction is to be found squarely within the four corners of the
Constitution under section 167 of which subsection (1) provides as
follows:
“167
Jurisdiction of Constitutional Court
(1)
The Constitutional Court —
(a)
is
the highest court in all constitutional matters, and its decisions on
those matters bind all other courts;
(b)
decides
only constitutional matters and issues connected with decisions on
constitutional matters, in
particular references and applications under section 131(8)(b)
and paragraph 9(2) of the Fifth Schedule; and
(c)
makes
the final decision whether a matter is a constitutional matter or
whether an issue is connected with a decision on a constitutional
matter.
(2)
Subject to this Constitution, only the Constitutional Court may —
(a)
advise on the constitutionality of any proposed legislation, but may
do so only where the legislation concerned has been referred to it in
terms of this Constitution;
(b)
hear and determine disputes relating to election to the office of
President;
(c)
hear and determine disputes relating to whether or not a person is
qualified to hold the office of Vice-President; or
(d)
determine
whether Parliament or the President has failed to fulfil a
constitutional obligation.” (My
emphasis).
Considering
that the applicants complaint is that the delay in executing the
sentences of death passed by the High Court is a violation of their
constitutional rights under sections 51 and 53 of the Constitution,
there can be no doubt that this is a constitutional matter over which
this Court has jurisdiction under section 167.
Despite
that finding, it does not follow that every matter that has some
constitutional connotations must necessarily be laid at this court's
door.
The
Constitution as the mother of all laws encompasses all other laws
with the result that every legal contest has some constitutional
implications. If all such cases were to be taken to this court it
would be overwhelmed to the extent of being dysfunctional. The
existence of other courts and administrative authorities would be
rendered nugatory.
This
brings me to the doctrine of ripeness and constitutional avoidance.
Whether
or not the constitutional issues raised are ripe for determination by
the Constitutional Court
Zimbabwe
operates a self-correcting hierarchical judicial system where in the
ordinary run of things cases start from the lower courts progressing
to the highest court of the land. Generally speaking higher courts
are loathe to intervene in unterminated proceedings within the
jurisdiction of the lower courts, tribunals or administrative
authorities.
In
the recent case of Munyaradzi
Chikusvu v Magistrate Mahwe
HH100–15, the High Court had occasion to observe that:
“It
is trite that judges are always hesitant and unwilling to interfere
prematurely with proceedings in the inferior courts and tribunals. In
the ordinary run of things, inferior courts and tribunals should be
left to complete their proceedings with the superior courts only
coming in when everything is said and done.”
In
Masedza
& Ors v Magistrate Rusape & Anor
1998 (1) ZLR 36 DEVITTIE J observed that a higher court will
intervene in unterminated proceedings of a lower court:
“only
if the irregularity is gross and if the wrong decision will seriously
prejudice the rights of the litigant or the irregularity is such that
justice might not by other means be attained.”
Although
the above judicial pronouncements were made by the High Court on
review, they are equally relevant to this Court's criteria for
intervention in unterminated proceedings before lower courts,
tribunals and administrative authorities.
Those
sentiments find expression in the words of GUBBAY CJ in the leading
case of Catholic
Commission for Justice and Peace in Zimbabwe v A-G & Ors
1993 (1) ZLR 243 (S) at 250G–A, where the learned Chief Justice had
this to say;
“Clearly
it (Supreme Court) has jurisdiction in every type of situation which
involves an alleged breach or threatened breach of one of the
provisions of the Declaration of Rights and particularly,
where there is no other judicial procedure available by which the
breach can be prevented.
Compare Martin
v Attorney-General & Anor
1993
(1) ZLR 153 (S) (My emphasis).”
It
is implicit in the learned Chief Justice's remarks that where there
are other judicial remedies to prevent the breach of fundamental
human rights, the Constitutional Court may withhold its jurisdiction.
What
then distinguishes this case from the Catholic
Commission for Justice
case is that, in that case, the Supreme Court only intervened at the
last moment when all available remedies had been exhausted and all
hope lost. The applicants appeals to the Supreme Court and pleas for
presidential pardon and clemency had failed and the date of execution
announced.
Undoubtedly
that case was ripe for the Supreme Court's intervention as the
highest court of last resort and final arbiter before execution.
The
same cannot be said in this case where the applicants still have some
alternative remedies at their disposal which I have already
enumerated above.
I
now proceed to consider the efficacy of those alternative remedies.
1.
Review
The
applicants main bone of contention is that they have been subjected
to prolonged inhuman and degrading prison conditions while awaiting
execution on death row.
The
question of prison conditions is an issue which can be properly
addressed by recourse to the review powers of the High Court. If the
prison conditions and conduct of prison authorities are repugnant to
law the High Court can provide a remedy on review in terms of the
Administrative Justice Act [Cap. 10:28]. The remedy will ensure that
the applicants are subjected to lawful humane prison conditions while
awaiting execution or reprieve from death row. That court can also
effectively deal with the question of delay on review.
2.
Appeal
All
convicts sentenced to death have an automatic right of appeal to the
Supreme Court.
As
I have already stated some of the applicants cases are yet to be
determined by the Supreme Court on appeal. These applicants stand a
very good chance of getting the relief they are seeking in the
Supreme Court on the merits without setting foot in this court. It
is, therefore, inappropriate and improper that they should be
resentenced by the High Court which is now functus
officio
when the relief they seek is available in the Supreme Court.
The
Supreme Court has the competence and discretion of determining the
appropriate sentence in view of the undisputed submission that the
State has no capacity to employ a hangman.
3.
Presidential Pardon
The
Constitution confers on the President the authority and power to
grant free pardon or commutation of death sentences to convicted
prisoners. On the other hand, section 48(2)(e) of the Constitution
confers an unfettered right on the applicants to seek free
presidential pardon or commutation of their respective death
sentences.
The
President in discharging his function may take into account the
non-availability of the executioner and the harsh prison conditions
complained of.
Thus
those who have already lost the battle to evade the hangman's noose
on appeal still have recourse to presidential prerogative of mercy.
It
is an immutable principle of our law that no one may be executed
without due process.
What
this means is that all the applicants are not in danger of extra
judicial execution as they still have at their disposal various other
alternative avenues of escape and redress of the alleged prison
wrongs.
The
applicants are seeking to upset the sentences passed by the High
Court without alleging, let alone proving, that it erred or was at
fault in any way.
It
seems they want to pre-empt and upset lawful valid sentences purely
on the basis of events which occurred after they had been convicted
and sentenced.
In
my view this sounds more of an appeal disguised as a constitutional
application.
In
my considered view events which occur in prison after conviction and
sentence are wholly irrelevant to warrant reconsideration of the
conviction or sentence by the trial court.
Once
a court has completed a case it washes its hands and moves forward
without looking back. The time honoured functus
officio
and res judicata
doctrines militate against the same court revisiting the same
completed case except in exceptional circumstances which are absent
in this case.
If
the High Court erred in any way, the remedy for those who are yet to
appeal resides in the Supreme Court and for those who have already
lost their appeals, in the invocation of the President's
prerogative of mercy.
It
would be a travesty of procedural justice for this court to bypass
both the Supreme Court and the President before they have exercised
their constitutional mandates to determine the applicable remedies
according to the prescribed laws of the land.
As
we have already seen, in the normal run of things courts are
generally loathe to determine a constitutional issue in the face of
alternative remedies. In that event they would rather skirt and avoid
the constitutional issue and resort to the available alternative
remedies.
This
has given birth to the doctrine of ripeness and constitutional
avoidance ably expounded by EBRAHIM JA in Sports
and Recreation Commission v Sagittarius Wrestling Club and Anor
2001
(2) ZLR 501 (S)
at
p505G where the learned judge had this to say:
“There
is also merit in Mr Nherere's submission that this case should
never have been considered as a constitutional one at all. Courts
will not normally consider a constitutional question unless the
existence of a remedy depends on it; if a remedy is available to an
applicant under some other legislative provision or on some other
basis, whether legal or factual, a court will usually decline to
determine whether there has been, in addition, a breach of the
Declaration of rights.” (See also Zantsi
v Council of State, Ciskei & Ors
1995 (4) SA 615 (CC)).
The
doctrine of ripeness and constitutional avoidance gives credence to
the concept that the Constitution does not operate in a vacuum or
isolation. It has to be interpreted and applied in conjunction with
applicable subsidiary legislation together with other available legal
remedies. Where there are alternative remedies the preferred route is
to apply such remedies before resorting to the Constitution.
That
conceptualisation of the law as previously stated finds recognition
in the leading case of Catholic
Commission of Justice and Peace in Zimbabwe (supra)
heavily
relied upon by the applicants.
In
that case the applicants waited until they had exhausted their
alternative remedies before approaching the Constitutional Court for
relief.
In
this case, the complaint has to do with delays in executing a court
judgment.
Admittedly
the wheels of justice tend to turn very slowly but that is no reason
for this court to prematurely intervene usurping the authority and
functions of the High Court, the Supreme Court and the President
under the guise of determining a constitutional issue.
For
that reason, this court would rather wait until the wheels of justice
have turned full circle, for doing otherwise in the circumstances of
this case, would be inconsistent with this Court's status as the
highest court of last resort in constitutional matters.
In
the interim the applicants may have recourse to the available
alternative remedies. When the time is ripe, this Court will have its
say.
In
view of the finding that none of the applicants are due for execution
the issue whether delay in executing them constitutes a breach of
their constitutional rights falls away.
Costs
normally follow the result but in this case, I find it undesirable to
load persons on death row with costs of suit. They had an arguable
case albeit,
misplaced and unsustainable at law. One cannot however fault them for
fighting for survival with all the means at their disposal.
It
is accordingly ordered that the application be and is hereby
dismissed with no order as to costs.
MALABA
DCJ: I
agree
ZIYAMBI
JCC: I
agree
GWAUNZA
JCC:
I agree
GARWE
JCC: I
agree
GOWORA
JCC: I
agree
HLATSHWAYO
JCC: I
agree
PATEL
JCC: I
agree
UCHENA
JCC: I
agree
Tendai
Biti Law,
applicants
legal practitioners
Civil
Division of the Attorney-General's Office,
respondents
legal practitioners
